K. MANICKCHAND & ORS. versus ELIAS SALEH MOHAMED SAIT & ANR.

Citation: [1969] 2 S.C.R. 1061 · Decided: 03-12-1968 · Supreme Court of India · Bench: J.M. SHELAT · Disposal: Case Partly allowed

Judgment (excerpt)

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K. MANICKCHAND & ORS. 
v. 
ELIAS SALEH MOHAMED SAIT & ANR . 
December 3, 1968 
[J. M. SHELAT AND V. BHARGAVA, JJ.) 
Transfer of Property Act (4 of 1882), ss. 60, 76, 77 and 83-Scope 
of-Proceeding under s. 83-If estops the filing of a suit for accounts-
Suit for redemption, what is. 
Usurious Loans Act (10 of 1918), ss. 2(3) and 3(3)--Scope of-
Suit to enforce agreement in respect of loan, what is-Commencement of 
Act, meaning of-When Act became applicable in Cantonment area in 
Bangalore. 
General Clauses Act (10 of 1897), ss. 3(13) and 5(3)-Dif/erence 
between 'commencement of Act' and 'an Act coming into operation'. 
On July 14, 1933, the respondents executed a usufructuary mortgage 
deed in respect of their premises in the Cantonment Area of Bangalore 
in the Mysore State, for a sum of Rs. 50,000, working out the considera-
tion on the basis of the amounts due under the earlier loans and adding 
to it the cash paid at the time df execution of the mortgage deed. The 
deed laid down, (i) that the mortgagee was entitled only to a sum of 
Rs. 700 per mensem, in lieu of interest on .the mortgage money and not 
to the entire receipts from the mortgaged property; (ii) that the mort-
gagors were to pay to the mortgagee 
interest on the 
principal sum at 
!!% per mensem which would work out at Rs. 750 per mensem during 
the period the mortgaged property remained vacant, or during the period 
the mortgagee was unable to realize the rents of the mortgaged premises, 
showing thereby, that the mortgagee's right was not confined to the re-
ceipts from the mortgaged property being taken in lieu of interest; and 
(iii) the mortgagee had the right to enhance the rent or to eject 
the 
existing lessee and let out the premises at enhanced rent, but did not 
have the right to appropriate the entire amount of enhanced 
rent but 
Rs. 700 per mensem only. 
On July 14, 1933, the respondents executed a usufructuary mortgage 
under s. 83 of the Transfer of Property Act, 1882 to discharge the debt 
due under the mortgage deed but the mortgagee 
did not accept 
the 
money. 
Thereafter, the mortgagor sold the mortgaged property and the 
purchaser deposited a sum of Rs. 66,463 and 
odd under s. 83 of the 
Transfer of Property Act, to be paid over to the mortgagee. The mort-
gagee accepted the amount and delivered possession of the 
mortgaged 
property and the necessary documents. 
The mortgagor then filed a suit 
for directing the mortgagee to render an account of his administration df 
the mortgaged p'fOperty from the date of mortgage and to pay the mort-
gagors the amount that may be found due. 
A preliminary decree for 
taking accounts and ascertaining the sum due was passed by the 
trial 
court. fo appeal to the High Court the mortgagee contended that (a) 
in view cf the unconditional tender of the 
mortgage 
money 
o~ two 
occasions under s. 83 of the Transfer of Property Act, the mortgagor 
was estopped from instituting. the suit for accounts; and (b) the mortgage 
fell within the scope of s. 77 of the Transfer of Property Act so that 
accounting could not be claimed under s. 76 of the Transfer of Property 
Act. The High Court held on the first contention that the mortgagor 
wai not estopped an<l refrained from saying anything about the applica-
1062 
SUPREME COURT REPORTS 
[1969] 2 S.C.R. 
bility of s. 76 or s. 77 of the Transfer of Property Act as the trial court 
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had not gme into the question. 
The mortgagee applied for a certificate 
for filing an appeal to this Court, but the High Court refu<ed it on the 
ground that its judgment was not a final adjudication of the rights be.-
tween the parties. 
The mortgage did not pursue his remedy by filing 
a petition for special leave in this Court, and the judgment of the High 
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Court became final. 
The trial court then took up the case and held : fi) that s. 76 of 
the Transfer of Property Act was applicable to the mortgage deed, and 
(ii) that the mortgagor was not entitled to any relief under the Usurious 
Loans Act, 1918. The trial court worked out the accounts and ascer-
tained the sum payable by the mortgagee to the mortgagor. 
On appeal, 
the High Court held that the mortgagor was entitled to the benefit 'of 
the Usurious Loans Act and directed the payment df a larger sum to the 
mortgagor on the basis of the applicability of that Act. 
In appeal to this Court, on the questions : ( 1) 
whether the suit for 
accounts was not maintainable in view 

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